Attorney General Holder Issues New Guidelines Governing the FOIA

On March 19, 2009, Attorney General Eric Holder issued comprehensive new guidelines to the heads of executive departments and agencies governing the Freedom of Information Act (FOIA). These guidelines reaffirm the government’s “commitment to accountability and transparency” as directed by President Obama in his Memorandum on the FOIA issued January 21, 2009, his first full day in office.

The Attorney General’s FOIA Guidelines address both the presumption of openness that the President called for in his FOIA Memorandum and the necessity for agencies to create and maintain an effective system for responding to requests and proactively making information available to the public in order to achieve the “new era of open Government” that the President envisions.

First, as to the presumption of openness, the Attorney General’s FOIA Guidelines strongly encourage agencies to make discretionary releases of records. They also direct agencies not to withhold records simply because a FOIA exemption may technically apply. Moreover, whenever full disclosure of a record is not possible, agencies are directed to consider whether a partial disclosure can be made.

Significantly, the Attorney General FOIA’s Guidelines establish a new standard for defending agencies. A denial of a FOIA request will now be defended by the Department of Justice “only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions or (2) disclosure is prohibited by law.”

Second, the topic of effective agency implementation of the FOIA is thoroughly addressed in the Attorney General’s FOIA Guidelines. The Guidelines discuss the critical roles played by agency Chief FOIA Officers as well as agency FOIA professionals. The Guidelines also emphasize the need for agencies to work cooperatively with requesters, to utilize technology to make information available to the public proactively, and to make timely responses to requests a priority.

Finally, the Attorney General’s FOIA Guidelines call on agency Chief FOIA Officers to review their agencies’ FOIA administration each year and to report to the Department of Justice on the steps taken to achieve improved transparency.

It is appropriate that the new guidelines were issued during Sunshine Week, when the birthday of James Madison is celebrated. Madison is traditionally viewed as the Father of the United States Constitution and a strong proponent of open government. The Attorney General’s FOIA Guidelines advance that important interest.

The Office of Information Policy will be providing additional training and guidance on implementing these guidelines. The Attorney General’s FOIA Guidelines are available at http://www.usdoj.gov/ag/foia-memo-march2009.pdf.
(posted 3/20/2009)

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